The Department of Homeland Security recently issued a memorandum to provide field offices with guidance on processing Form I-485, Application to Register Permanent Residence or Adjust Status, when the beneficiary of an approved Form I-140, Petition for Immigrant Worker, is eligible to change employers under § 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”).  The following ABC article is intended to answer questions that may arise under this situation.

1.     Are the previous memoranda concerning the American Competitiveness Act still in place?

Three memoranda regarding this topic are still in effect.

A.     “Interim Guidance for Processing H-1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313”

B.      “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act (Public Law 106-313) and Related Legislation (Public Law 106-311)”

C.     “Procedures for concurrently filed family-based employment-based Form I-485 when the underlying visa petition is denied”

2.     When did the new rule take effect?

The Service published an interim rule allowing, in certain circumstances, the concurrent filing of Form I-140 and Form I-485 on July 31, 2002 .

3.     How has this new rule changed the law?

Previous Service regulations required an alien worker to first obtain approval of the underlying Form I-140 before applying for permanent resident status on the Form I-485. 

4.     When will the approval of an I-140 employment-based (EB) immigrant petition remain valid if an alien changes jobs?

The I-140 will remain valid if 

                                                  i.      Form I-485, Application to Adjust Status, on the basis of the EB immigrant petition has been filed and remained unadjudicated for 180 days or more AND

                                                 ii.      the new job is in the same or similar occupational classification as the job for which the certification or approval was initially made.

5.     What if the Form I-485 has been pending for less than 180 days?

The approved Form I-140 will not remain valid with respect to a new offer of employment.

6.     What if my employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days?

The approved Form I-140 will remain valid under the provisions of §106(c) of AC21 under the assumption that the alien will submit evidence that the new offer of employment is in a same or similar occupational classification as the offer of employment for which the petition was filed.

However, if the approved Form I-140 is withdrawn and the alien has not submitted evidence concerning the new offer of employment, the adjudicating officer must issue of Notice of Intent to Deny the pending Form I-485. 

7.     Can I still submit evidence after receiving a Notice of Intent to Deny?

If the evidence of a new qualifying offer of employment submitted in response to the Notice is timely filed and it appears that the alien has a new offer of employment in the same or similar occupation, the BCIS may consider the approved Form I-140 to remain valid with respect to the new offer of employment and may continue regular processing of the Form I-485.

If the applicant responds, but does not establish that the new offer of employment is in the same or similar occupation, the adjudicating officer may deny the Form I-485.  Also, if the alien fails to respond in a timely manner to the Notice of Intent to Deny, the adjudicating officer may immediately deny the Form I-485.

8.     What happens if my employer withdraws my Form I-140 before the Form I-485 has been pending for 180 days?

If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the alien’s Form I-485 has been pending 180 days, the approved Form I-140 is no longer valid with respect to a new offer of employment and the Form I-485 may be denied.

9.     Is there any circumstance where the BCIS would have the power to revoke with these conditions being met?

Any type of fraudulent activity on the part of the employee or employer may prevent the alien from receiving these benefits.  For example, if the BCIS revokes approval of the Form I-140 based on fraud, the alien will not be eligible for the job flexibility provisions of § 106(c) of AC21 and the adjudicating officer may, in his or her discretion, deny the attached Form I-485.

10. Does the BCIS require that the alien be employed until permanent residence is authorized?

There is no requirement in statute or regulations that a beneficiary of a Form I-140 actually been in the underlying employment until permanent residence is authorized.  Therefore, it is possible for an alien to qualify for the provisions of §106(c) of AC21 even if he or she has never been employed by the prior petitioning employer or the subsequent employer under section 204(j) of the Act.